The Sale, Commercial Display of and Ratings of Violent Video Games to Minors

Testimony of Robert Perry on behalf of the New York Civil Liberties Union before The New York City Council's Committee on Consumer Affairs Regarding Int. No. 18 and Int. No. 60 in Relation to the Sale, Commercial Display, and Enforcement of Ratings of Violent Video Games to Minors. My name is Robert Perry. I am the Legislative Director of the New York Civil Liberties Union (“NYCLU”). The NYCLU is the New York affiliate of the American Civil Liberties Union. The NYCLU is devoted to the protection and enhancement of those fundamental rights and constitutional values embodied in the Bill of Rights. Central to this mission is our advocacy regarding the right of free expression as recognized under the Federal Constitution's First Amendment and Article 1, Section 8, of the New York State Constitution. I present testimony today on two proposed local laws intended to prevent children and adolescents from purchasing violent interactive video or computer games. The proposed legislation considers games “violent” if they are rated “Mature” or “Adults Only” by the electronic game industry’s Entertainment Software Rating Board (“ESRB”) and if they also contain certain specified violent content. Int. No. 18 would ban the sale or rental of violent video games to minors and impose monetary penalties against persons or retailers who violate the prohibition. Int. No. 60 would require retailers to place violent games in a separate area or display, and to post signs indicating that such games are intended for people who are “at least” 17 years old. The NYCLU recognizes the City’s important interest in protecting the well being of minors and preventing acts of youth violence. We respectfully submit, however, that the legislation before this committee today will not further these objectives. We are no less certain that enactment of these proposals would involve the City in a regulatory scheme that undermines constitutional protections afforded the right to freedom of speech. Intros. 18 and 60 Impermissibly Restrict the Sale and Purchase of Video Games in Violation of the First Amendment The Supreme Court has held that the content-based regulation of protected speech presumptively violates the First Amendment. Any such regulation is subject to strict scrutiny – that is, to survive a constitutional challenge, the government must demonstrate that the regulation is necessary to serve a compelling state interest and that it is narrowly tailored to achieve that end. This is the constitutional test that must be applied to the proposed legislation; it is our view that these proposals fail the test. In applying this test, it is important to keep in mind the Supreme Court’s observation that “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” In a seminal case from the Vietnam War era the Supreme Court observed that “minors may not be regarded as closed-circuit recipients of only that which the State chooses to communicate.” Interactive video games are generally considered “speech” within the meaning of the First Amendment. Federal Circuit courts have found that violent video games “contain stories, imagery, ‘age-old themes of literature,’ and messages, ‘even an ideology,’ just as books and movies do.” The proposed legislation specifically targets video and computer games containing violence, and therefore proposes to regulate video games based on content. While it is clear that the City has a compelling interest in safeguarding the physical and psychological well being of minors, it is equally clear that these bills are not narrowly tailored to address the alleged harm. The Supreme Court has held that

When the Government defends a regulation on speech as a means to . . . prevent anticipated harms, it must do more than simply posit the existence of the disease to be cured. It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.

Two federal Circuit Courts have recently examined this issue of harm in the context of ordinances similar to Intros. 18 and 60. In both cases the local laws failed because the proposed legislative remedy could not be expected to “cure the disease.” One of these cases arose when the Indianapolis City Council enacted an ordinance restricting minors’ access to video games depicting graphic violence, defined as “realistic serious injury to a human or human-like being where such serious injury includes amputation, decapitation, dismemberment, bloodshed, mutilation, maiming or disfigurement.” The Indianapolis ordinance, which had been enacted in 2000, also required the separation by partition of video game machines that displayed such content from other video machines. The City’s stated interest was the prevention of harm to minors caused by playing violent video games. Judge Richard Posner, however, rejected the alleged causal link between violent video games and increased levels of violence, noting that social science studies “do not find that video games have ever caused anyone to commit a violent act, as opposed to feeling aggressive, or have caused the average level violence to increase anywhere.” Judge Posner also observed:

When Dirty Harry or some other avenging hero kills off a string of villains, the audience is expected to identify with him, to revel in his success, to feel their own finger on the trigger. It is conceivable that pushing a button or manipulating a toggle stick engenders an even deeper surge of aggressive joy, but of that there is no evidence at all.

Accordingly, because the City of Indianapolis failed to present empirical support for its view that violent video games cause psychological harm to minors, the ordinance was found unconstitutional. It has been argued that violence depicted in video games is different from the violence seen in other media because the video games are interactive. And for this reason the courts should adopt a less demanding test in analyzing the regulation of violent videos. Judge Posner also rejected this argument.

“[T]his point is superficial, in fact erroneous. All literature (here broadly defined to include movies, television, and the other photographic media, and popular as well as highbrow literature) is interactive; the better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.”

Intros. 18 and 60 Conflate Obscenity with Violence The ESRB gives ratings of “Mature” and “Adults Only” to videos that may contain “mature sexual themes” or “graphic depictions of sex.” Int. No. 18, however, proposes a rating category that conflates sexual content with content that is violent. If the concern is sexual conduct that is indecent, New York Penal Law already proscribes the dissemination of this material to minors, and more broadly outlaws obscenity. To prohibit access to video or computer games under a law that conflates obscenity and violence is further problematic in that such a regulation brings into play different legal standards. In his ruling regarding the Indianapolis ordinance, Judge Posner discussed this problem, observing that speech is categorized as obscene because it violates community norms regarding the acceptable scope of depictions of sexual activity, not because it is likely to affect anyone’s conduct. No proof is required that obscenity is harmful in order to defend an obscenity statute; “[o]ffensiveness is the offense.” However, the basis of that ordinance, as with the proposed legislation before this committee, is not offensiveness – but, rather, the premise that violent video games cause harm by engendering aggressive attitudes and conduct that may result in violent acts. As noted above, the court found no evidence to support this proposition. Int. No. 60 impermissibly restricts First Amendment rights Int. 60 would require that one who sells or rents “violent video or computer games” must locate such games “in a display, container, or other space that is physically separated from all other video or computer games.” In light of the previous analysis, this proposal to segregate and restrict access to videos based upon their violent content cannot pass constitutional muster. The bill in effect implements the unconstitutional restrictions upon the sale and purchase of violent videos (as proposed by Int. No. 18), dictating a floor plan that creates literal physical obstacles (and perhaps psychological ones as well) that are designed to frustrate activity protected by the First Amendment – the sale and purchase of videos that have violent content. There is a lack of empirical evidence to establish that Playing Violent Video Games Causes Violence In addition to undermining constitutional rights and principles, there are other compelling reasons to question the underlying public policy interest that these bills seek to advance -- that by restricting access to depictions of violence in interactive games, it is possible to reduce the incidence of actual violence or aggression. It is a common misrepresentation that a link exists between violent media and violent behavior. Most studies and experiments on violent video games, however, have not found adverse imitative effects. Those studies reporting a causal connection have generally relied on minor statistical differences and have used unrealistic tests for aggression. For example, in one such experiment subjects were required to play a portion of either a violent or non-violent video game, and were then tested for aggression by giving “noise blasts” to game opponents or by recognizing “aggressive words” on a computer screen. A slightly larger number of participants who played the violent video game gave somewhat longer noise blasts or recognized the words on the screen fractions of sections more quickly. Based on these results, the authors of the study concluded that graphically violent video games increased aggressive behavior. The cities of St. Louis and Indianapolis relied on this particular lab experiment to assert that violent video games cause harm to minors. Both the Seventh and Eight Circuits however, found no meaningful correlation between viewing violent videos and acting violently and struck down the respective ordinances.” Alternative strategies for addressing youth violence Professor Edward Donnerstein, in summarizing scholarship on violence in the media, observed that if the child has an aggressive predisposition, the mass media can maintain and reinforce such a disposition. This, however, is “much different,” Professor Donnerstein points out, “from causation and does not suggest regulation.” Data indicate that education and media literacy can help a great deal in mitigating any negative effects caused to a young person by media violence. In addressing the issue of television violence, Professor Donnerstein has commented:

Children can learn to be informed viewers. Children can learn to critically evaluate the mass media. There is research to suggest that if children are aggressive and watch a lot of violent programs but their parents give them information on how to view those programs, the impact of media violence can be mitigated. Education would go an incredibly long way to deal with this problem. It takes money and time, but it would solve many problems in this particular area. Legislation is not going to change the problem of easy access. Education, on the other hand, will.

And in considering the effects of violent conduct depicted in video games, one should not discount the salutary effects on social and psychological development. Studies have found that exaggerated on-screen violent fantasy may provide a healthy release of aggressive feelings and that fantasy play involved in violent video games can instill feelings of positive achievement and competence in a competitive arena. What’s more, Judge Posner took note in his ruling on the Indianapolis ordinance that certain video games can serve to dispel gender stereotypes among youth. Judge Posner, in finding that violent video games contain stories and ideologies, described “Ultimate Mortal Kombat 3”:

“A man and a woman are dressed in vaguely medieval costumes, and wield huge swords. The woman is very tall, very fierce, wields her sword effortlessly. The man and the woman duel, and the man is killed. Another man appears -- he is killed too. The woman wins all the duels. She is as strong as the men, she is more skillful, more determined, and she does not flinch at the sight of blood. Of course, her success depends on the player’s skill, and the fact that the player, whether male of female, has chosen to be the female fighter. But the game is feminist in depicting a woman as fully capable of holding her own in violent combat with heavily armed men. [The video game] thus has a message, even an ‘ideology’. . . .”

This is not to suggest that anyone of us may find the content of certain videos idiotic, despicable, and lacking any socially redeemable value. The point is that these are personal, individual judgments. Absent clear and persuasive evidence that viewing violent videos causes harm (or that they violate obscenity or indecency laws), it is not appropriate for the government to make the determination as to which violent videos may be viewed. Professor Todd Gitlin has made acute observations pertinent to this deliberation. Gitlin notes that in seeking ways to neutralize the presumed effects of televised depictions of violence, we often fail to address the actual weapon of violence: the gun. The legislative findings that accompany this bill note that certain interactive games promote the development of weapon and firearm skills. But what the video games may actually develop is improved hand-eye coordination and reflex response. It is a big leap to assert that manual dexterity will be used to inflict violence on others. The Canadians, Professor Gitlin notes, watch the same television as do Americans (and presumably Canadian children play the same video games as do American children), but crime rates in Canada do not approach those in the U.S. Gun restriction, Gitlin points out, are one important reason. Regulation of guns may be a far more effective initiative than regulation of video games in reducing the incidence of violence in American culture. The NYCLU respectfully suggests that there are meaningful policy measures that can help young people respond appropriately to violence in the interactive media – including education, media literacy and gun regulation. There is also persuasive empirical evidence that the city’s regulations proposed in Intros. 18 and 60 offer little help in this regard. In light of these observations and the real harm this legislation poses to constitutionally protected activities, the NYCLU strongly recommends that the Committee explore alternative strategies that can have a far greater impact in protecting young people from violence.